Roundtable Discussion of Montana’s Stream Access

On September 19th PERC hosted a roundtable discussion on the issue of stream access in Montana. Twenty three discussants and 6 observers participated in Bozeman. A wide spectrum of interests was represented, from traditional and new (out-of-state) landowners to public access advocates. The Fish, Wildlife, and Parks Department participated, as did members of the Legislature who addressed this issue in the past session; conservation groups and outfitters were also represented. What follows is a summary of the topics discussed by this knowledgable panel, some of the mutual agreements, points of contention, and areas for better definition and further work on this issue.

What is impact of stream access?
There is a very real impact on landowners in terms of fence damage, vehicle traffic, litter, and weed proliferation. Compensation for the landowner from the state has substantial transaction costs, and some may not even know about the existence (or possibility) of a compensation fund. Conflict over this impact is limited to a handful of "hot spots" around the state. It was stressed that many rivers are accessed without incident, but there was a widespread concern that this cannot continue in the face of increasing angler demands.

What is the problem?
Aside from isolated instances, the stream access program has been widely successful. Because of increasing demand for access to streams friction has increased in some specific places. Landowners point out that access that has historically been allocated by permission is now being acquired by litigation. There seems to be increasing anxiety and tension over the issue.

Trespass
Those who break the existing law were universally castigated. The question then became how to handle those who break the law. Education and increased enforcement were suggested as remedies. Education was suggested at the word-of-mouth level. There was broad support for increasing license fees (especially on residents) to pay for heightened warden presence. Some landowners questioned whether increased enforcement would solve the problem.

Improving Enforcement
There was a general discussion about how enforcement might be increased to reduce trespass. Increasing official law enforcement presence, instituting a system of deputies, and creating a tipline for anglers to reports violators were all suggested. There were no direct suggestions for funding any of these options.

Problems with Stream Access
Most of the problems with stream access are tangential to the issue itself. However, the inaccurate representation of the stream access law by anglers, and in fact the misrepresentation of the issue in the press has been a major cause of trouble. Education is the remedy to this problem, but no specific proposals were discussed. It was also recognized that many anglers are in fact very wise to the letter of the law but still choose to flaunt it when they know they will not be caught. One proposed remedy was to close access to trouble spots.

Landowner Incentives
The point was raised that landowners lack significant access to promote stream access through their property. Several personal stories were related by landowners of trespass and resource damage. There was direct suggestion that landowners can never be fully incentivized because both wild fish and navigable rivers are managed for the public trust.

Stream Access and Land Conservation
A general discussion of the relationship between stream access and other land conservation efforts raised questions about whether easements imply access. There was also concern that the existing liberal stream access provision might "crowd out" further conservation efforts.

Resource Improvements
There was suggestion that the stream access regime in Montana has prevented some landowners from making marginal resource improvements. This was countered with the suggestion that the public also has incentives to improve the resource.

Management Objectives

There was a brief discussion of general management objectives, and questions as to whether one-size-fits-all management is appropriate. The FWP is mandated to use a variety of tactics. These include fishing regulations and various types of limiting use such as those on the Smith, Big Hole/Beaverhead, and Blackfoot Rivers. While none of these limits would work statewide, there was agreement that they had all worked well in their respective locations.

there was agreement that portage and natural barriers are two aspects of the law which require better definition

The Crystal Ball
Reviewing the recent legal history of the stream access issue, which has been taken all the way to the U.S. Supreme Court, there was some concern that another legal challenge might be launched. In particular, there was concern that some sort of non-representative situation might be used as an example for a legal challenge which would then result in a "bad law" for the state.

Tim Fitzgerald is an assistant professor of economics at Montana State University and was a 2012 PERC Lone Mountain Fellow. His paper “Frackonomics: Some Economics of Hydraulic Fracturing” was recently published in the Case Western Reserve Law Review.